SPEAKERS CONTENTS INSERTS
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63–594
2000
INTERNET DOMAIN NAMES AND INTELLECTUAL PROPERTY RIGHTS
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS AND INTELLECTUAL
PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
JULY 28, 1999
Serial No. 42
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
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DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Courts and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
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ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
MARY BONO, California
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
MITCH GLAZIER, Chief Counsel
BLAINE MERRITT, Counsel
VINCE GARLOCK, Counsel
DEBBIE K. LAMAN, Counsel
ROBERT RABEN, Minority Counsel
EUNICE GOLDRING, Staff Assistant
C O N T E N T S
HEARING DATE
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July 28, 1999
OPENING STATEMENT
Coble, Hon. Howard, a Representative in Congress from the State of North Carolina, and chairman, Subcommittee on Courts and Intellectual Property
WITNESSES
Chasser, Anne, President, International Trademark Association (INTA)
Cohen, Jonathan, President, Intellectual Property Constituency of the Domain Name Supporting Organization of ICANN
Daniels, Michael A., Chairman of the Board, Network Solutions, Inc. (NSI)
Gurry, Francis, Assistant Director General and Legal Counsel, World Intellectual Property Organization (WIPO)
Karg, Kathlene, Director of Intellectual Property and Public Policy, Interactive Digital Software Association, on Behalf of Copyright Coalition on Domain Names
Kirk, Mike, Executive Director, American Intellectual Property Law Association (AIPLA)
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Pincus, Andrew J., General Counsel, Department of Commerce
Roberts, Michael, Interim President and CEO, Internet Corporation for Assigned Names and Numbers (ICANN)
Stubbs, Ken, Chairman of the Executive Committee, Internet Council of Registrars (CORE)
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Chasser, Anne, President, International Trademark Association (INTA): Prepared statement
Cohen, Jonathan, President, Intellectual Property Constituency of the Domain Name Supporting Organization of ICANN: Prepared statement
Daniels, Michael A., Chairman of the Board, Network Solutions, Inc. (NSI): Prepared statement
Letter to Hon. Howard Coble dated August 10, 1999
Letter to Hon. Howard L. Berman dated August 11, 1999
Goodlatte, Hon. Bob, a Representative in Congress from the State of Virginia: Prepared statement
Gurry, Francis, Assistant Director General and Legal Counsel, World Intellectual Property Organization (WIPO): Prepared statement
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Karg, Kathlene, Director of Intellectual Property and Public Policy, Interactive Digital Software Association, on Behalf of Copyright Coalition on Domain Names: Prepared statement
Kirk, Mike, Executive Director, American Intellectual Property Law Association (AIPLA): Prepared statement
Pincus, Andrew J., General Counsel, Department of Commerce: Prepared statement
Roberts, Michael, Interim President and CEO, Internet Corporation for Assigned Names and Numbers (ICANN): Prepared statement
Rogan, Hon. James E., a Representative in Congress from the State of California: Prepared statement
Stubbs, Ken, Chairman of the Executive Committee, Internet Council of Registrars (CORE): Prepared statement
APPENDIX
Material submitted for the record
INTERNET DOMAIN NAMES AND INTELLECTUAL PROPERTY RIGHTS
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WEDNESDAY, JULY 28, 1999
House of Representatives,
Subcommittee on Courts and
Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. Howard Coble [chairman of the subcommittee] Presiding.
Present: Representatives Coble, Goodlatte, Pease, Cannon, Rogan, Berman, Lofgren and Delahunt.
Staff present: Mitch Glazier, Chief Counsel; Vince Garlock, Counsel; Dana Simpson, Law Clerk; Eunice Goldring, Staff Assistant; and Bari Schwartz, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN COBLE
Mr. COBLE. Good morning, ladies and gentlemen. The subcommittee will come to order.
Permit me to, first of all, dismiss some housekeeping duties. I owe an apology to Howard Berman, Jim Rogan, Zoe Lofgren, and Mary Bono, all Californians who sit on this subcommittee, regarding the funeral of the late George Brown. The funeral is today. We tried our best to postpone today's hearing and make it later in the week, but there was simply no space available tomorrow. That left us with the decision of doing it today or assuming the risk of maybe running over into next week. We elected to go today. So, I regret that we couldn't do that.
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With that in mind, I think it would be in order and appropriate for us to have a moment of silence in the memory of our departed friend, George Brown.
[Moment of silence.]
Mr. COBLE. Today, we are here to focus our attention on the rapidly changing world of the Internet. The number of domain name registrations has increased, according to one estimate, from approximately 100,000 at the beginning of 1995 to about 7.2 million at the present time. As we all know, the expansion of the Internet creates many exciting opportunities for businesses and entrepreneurs. At the same time, however, the Internet also presents many challenges to the enforcement of intellectual property rights.
During the last session of the Congress, this subcommittee conducted two hearings on Internet domain names to access their impact on intellectual property rights, particularly the Lanham Act. At that time, Network Solutions, Inc., was the only entity registering generic domain names. The general consensus of the Internet and intellectual property communities was that congressional action was not needed. Today, however, with the creation of ICANN and the introduction of competition in the registration of domain names, there is a need to revisit this issue.
As noted in the WIPO report, the assignment of domain names is a privately administered system and gives rise to registrations that result in a global presence, accessible from anywhere in the world. Contrast that to intellectual property rights, which are publicly administered on a territorial basis and are exercisable only within that territory. That is the crux of the problem before us.
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This hearing will focus on the intellectual property challenges created by Internet domain names. Because the domain name system represents a fertile ground for both trademark and copyright violations, this is an area of special importance to this subcommittee. Although the introduction of competition into the registration of domain names is a positive step for the Internet, it raises significant questions for the intellectual property community. Will the new domain name governance structure adequately protect American intellectual property interests? Will intellectual property owners have access to accurate contact information in an accessible ''Whois'' database in order to protect their copyright and trademark rights? Finally, can the current system adopt policies to effectively protect intellectual property owners from cybersquatters or is Federal legislation needed?
Some would argue that these issues should not be at the top of the agenda for the domain name industry. I do not agree. The issues we will discuss today are indicative of the challenges facing all of us as the governance of the Internet is shifted from the government to the private market. This subcommittee must ensure that, as the Internet grows and transforms itself into the dominant commerce medium of the 21st century, intellectual property concerns are adequately protected.
I am now pleased to recognize the ranking member of the subcommittee, the distinguished gentleman from California, Mr. Berman, for his opening statement.
Mr. BERMAN. Thank you, Mr. Chairman.
First, let me express my appreciation, and I think that I speak for all of us from California, with your efforts to try and accommodate our needs, and I understand what you were trying to go through both in terms of witness schedules and in terms of hearing rooms. We are very grateful for those efforts. You have nothing to apologize for.
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This is sort of a complicated subject, and this member is trying to get a grasp of all aspects of what is going on now. I think it is very timely for you, Mr. Chairman, to hold this hearing on the intersection of two very important aspects of the development of the Internet.
It has been said before that the Internet is the engine driving our economy in the information age. Intellectual property is at the core of the Internet. In fact, what is information? Facts and intellectual property. The information age really is the intellectual property age.
Some have said that, in light of the technological advances, a new paradigm is evolving where intellectual property no longer can be nor should it be protected by law. I hope this is a minority view.
Some simply believe that we should get the technology in place, get the market working, and then deal with the more complex legal and policy issues. I disagree. Simply because we can distribute intellectual property to vastly wider audiences than ever before with incredible efficiency, the fundamental reasons to protect intellectual property are no less valid today than they were prior to the invention of the Internet.
The reasons for intellectual property protection, particularly the Founding Fathers' reasons for including protection for intellectual property in the Constitution, are more important today than ever before. As technology facilitates the more efficient sharing of ideas and creative thinking, the means to evolve knowledge are more efficient.
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As a general proposition, the willingness to express one's ideas, the free flow of expression, remains inextricably linked to the notion that one's expressions would be protected by a law under the Constitution from unauthorized exploitation by others. As the Internet grows, people are recognizing and realizing new ways to exploit their intellectual property and are finding new and extraordinary economic value in it. I see evidence of this every time the question of copyright comes up. Academics argue for their proprietary interests, publishing houses, song writers, scientists, movie studios, individuals and large corporations all fight to protect their interests in their creative works, as they should.
This really is the intellectual property age. But I agree that there is a new paradigm. No longer is it only the responsibility of the individual to protect his or her own rights or the responsibility of the government to protect the rights of the individual. Here, to a large extent, we are privatizing that responsibility. The design of the domain name system and the rules by which registrars and registrants have to play are critical to the ability of intellectual property owners to protect their interests. It is necessary for there to be new, privately established mechanisms and rules to assist individuals in protecting their rights.
So what I hope to hear today is a recognition that, above all, as the architecture of the domain name system is being designed and implemented, at the fore of the people who are doing this, that at the fore of your thinking is how best to facilitate the protection of intellectual property.
I am looking for each of the responsible entities here today, the government, ICANN, NSI, and the other registrars, to give me the assurance the fodder for this new economy, information—that is, intellectual property—is being looked after. Specifically it is critical that the ''Whois'' database, whether that of NSI or the other registrars, be freely, publicly, and easily accessible without restriction and that the databases have useful and accurate information about registrants. That is important to the protection of the intellectual property and especially to consumers in e-commerce.
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I understand that NSI has a viewpoint that conflicts with this principle, and I hope NSI understands that they are in a minority and may be alone in that belief and that many of us in Congress are concerned about your position.
I am concerned that there be an appropriate mechanism to address trademark disputes. WIPO has made recommendations to address this. I hope ICANN will act aggressively to address this serious matter.
In light of the pace at which competition is developing in this area, I urge ICANN to act promptly in establishing the uniform means to protect intellectual property which is placed at greater risk with every day of growth of the Internet and to enforce the terms of their accreditation agreements when those terms are not met.
I look forward to hearing from the witnesses, Mr. Chairman. Thank you.
Mr. COBLE. I thank the gentleman.
As evidenced by the number of the members of the subcommittee who are here and the fact that this room is filled, there is obviously great interest in this subject. We are not in the full hearing room because there is a hearing being conducted there now. That is why we are in this room.
I think we may well have a second round of questions, particularly for the next panel. So let's see how that goes as we develop into the morning.
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Our first witness this morning will be Mr. Andrew Pincus, who is the General Counsel, the chief legal advisor for the Department of Commerce. Beyond his legal responsibilities, Mr. Pincus also serves as a senior policy advisor for the Secretary and the Department on a broad range of domestic and international issues, including electronic commerce, international trade, telecommunications, intellectual property rights, environmental issues, export controls, and technology.
Mr. Pincus holds a Bachelor of Arts degree from Yale University in 1977, where he graduated cum laude, and a law degree from the Columbia University School of Law in 1991 where he was the James Kent scholar, Harlan Fiske Stone scholar, and Notice and Comments Editor of the Law Review.
The subcommittee has copies of the witness' testimony which, without objection, will be made a part of the record.
Mr. Pincus, we are delighted to have you with us. We on this subcommittee try to adhere to what has become known on the Hill as the 5-minute rule. When the red light illuminates in your eyes, you know that you have exhausted your time. So if you could adhere to the time limit, we would be appreciative, and we would be pleased to hear from you.
STATEMENT OF ANDREW J. PINCUS, GENERAL COUNSEL, DEPARTMENT OF COMMERCE
Mr. PINCUS. Thank you, Mr. Chairman. It is an honor to appear before the subcommittee on this important issue.
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Let me begin by stating what may be obvious but nonetheless needs to be iterated. We at the Commerce Department are very much aware of the importance of intellectual property to the functioning of our economy and of the need to ensure that the domain name has consistent structure to ensure that IP owners have the tools they need to protect their rights in cyberspace just as they can do in the physical world. Indeed, this is one of the basic principles underlying our domain name policy.
In 1997, President Clinton directed Secretary Daley to transition management of the domain name system to the private sector in a way that promoted robust competition and international participation. That was the response to Internet stakeholders who were calling for change in the way that Internet names and addresses were assigned for a number of reasons.
One of those was the conflict between trademark holders and the trade name holders who were becoming increasingly prevalent——
Mr. COBLE. Mr. Pincus, if could you pull the mike a little closer to you, I think the folks in the back of the room could probably hear you better.
Mr. PINCUS. I didn't see that switch.
When a trademark is unlawfully used as a domain name, consumers may be misled about the source of the product or service that is offered on the Internet, and trademark owners may not be able to protect their rights without very expensive litigation. For cyberspace to function effectively as a commercial market, businesses must have confidence that their trademarks can be protected in that environment.
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Following a 1-year process in which we gathered over a thousand comments in the course of multiple Requests for Comment, we issued a Statement of Policy on the Management of Internet Names and Addresses, which has become known as the White Paper. It called upon the private sector to create a new, not-for-profit corporation to assume responsibility for management of that system and also set forth a policy framework to govern that transition. The White Paper contains specific recommendations to ensure that this transition would preserve the rights that the trademark holders have in the physical word. I can briefly summarize the recommendations on IP issues that were contained in the White Paper.
First of all, access to contact information. The White Paper made quite clear that key elements of contact information that we specified with respect to the ownership and the location of particular web sites would be available for anyone with access to the Internet. That information had to be accurate and up to date.
We also suggested that the new management entity which was not—ICANN wasn't in existence then but has become ICANN—should adopt a number of policies designed to reduce domain name speculation involving another party's trademarks, the nefarious practice that has become known as cybersquatting.
This included a requirement that domain name registrants should pay the registration fees at the time of registration in order to discourage speculation; that registrants should agree to submit themselves and to be bound by alternate dispute resolution processes so there would be an efficient and effective and inexpensive way to adjudicate disputes between trademark holders and domain name registrants; and that domain name registrants should agree at the time of registration to abide by processes that the new corporation would develop to deal with the issue of famous trademarks being used as domain names.
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The White Paper also recognized the need for an in-depth examination of intellectual property issues and called for a study by the World Intellectual Property Organization of these issues.
In the years since we issued the White Paper, a lot has happened. As I mentioned, the private sector did come together to create ICANN; and we have recognized that entity and entered into a joint Memorandum of Understanding to jointly design, develop and test the mechanisms that have to be in place in order to transition management responsibility to the private sector.
I am pleased that, as ICANN has been up and running in the little more than 7 months since we recognized it, a number of the intellectual property recommendations that were in the White Paper have been implemented. The ICANN agreement with registrars requires them to make—collect and make available—up-to-date contact information. It also requires prepayment of registration fees, and it also includes an agreement to comply with policies on cybersquatting and famous marks as they will become developed.
Does that conclude my——
Mr. COBLE. We won't cut you off in the middle of a sentence, Mr. Pincus.
Mr. PINCUS. We are also happy that WIPO expeditiously completed their worldwide process and developed what we believe is a very insightful and good report. That confirms a number of the recommendations we made in the White Paper as well as filling in the bones of those issues, and we look forward to the implementation of that agreement.
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I will stop there and be happy to answer any of the subcommittee's questions. Thank you, Mr. Chairman.
Mr. COBLE. Thank you, Mr. Pincus.
[The prepared statement of Mr. Pincus follows:]
PREPARED STATEMENT OF ANDREW J. PINCUS, GENERAL COUNSEL, DEPARTMENT OF COMMERCE
Thank you for the opportunity to appear here today. I would like to review for you, very briefly, the history of the United State Government's involvement in the domain name system, especially as it relates to the interplay between domain names and intellectual property protection.
Before I begin that review, however, I want to articulate several principles that are an important part of the Administration's policy in this area.
It is imperative that intellectual property owners have the tools they need to enforce their rights in cyberspace.
We strongly support the development of appropriate mechanisms to deter actors who in bad faith register domain names to mislead consumers and wrongly capitalize on the good will of trademark owners.
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Intellectual property owners should be active participants in the Internet Corporation for Assigned Names and Numbers (ICANN) process, and the ICANN process should take into account the needs of intellectual property owners in developing policies for the domain name system.
BACKGROUND
Domain names are the familiar and easy-to-remember names for Internet computers (e.g., ''www.ecommerce.gov''). They map to unique Internet Protocol (IP) numbers (e.g., 98.37.241.30) that serve as routing addresses on the Internet. The domain name system (DNS) translates Internet names into the IP numbers needed for transmission of information across the network.
Today's Internet is an outgrowth of U.S. Government investments in packet-switching technology and communications networks carried out under agreements with the Defense Advanced Research Projects Agency (DARPA), the National Science Foundation (NSF) and other U.S. research agencies. The Government encouraged bottom-up development of networking technologies through work at NSF, which established the NSFNET as a network for research and education. The NSFNET fostered a wide range of applications, and in 1992 the U.S. Congress gave the NSF statutory authority to commercialize the NSFNET, which formed the basis for today's Internet.
As a legacy, major components of the domain name system are still performed by or subject to agreements with agencies of the U.S. Government.
The domain name space is constructed as a hierarchy. It is divided into top-level domains (TLDs), with each TLD then divided into second-level domains (SLDs), and so on. More than 200 national, or country-code, TLDs (ccTLDs) are administered by their corresponding governments or by private entities with the appropriate national government's acquiescence. A small set of generic top-level domains (gTLDs) does not carry any national identifier, but denote the intended function of that portion of the domain space. For example, .com was established for commercial users, .org for not-for-profit organizations, and .net for network service providers. The registration and propagation of these key gTLDs are still performed by Network Solutions, Inc. (NSI), a Virginia-based company, under a continuation of some of the terms of its five-year cooperative agreement with NSF.
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THE NEED FOR CHANGE
From its origins as a U.S.-based research vehicle, the Internet has become an international medium for commerce, education and communication. So the traditional means of organizing its technical functions need to evolve as well. The pressures for change has come from many different quarters:
There is widespread dissatisfaction about the absence of competition in domain name registration.
The mechanisms for resolving conflict between trademark holders and domain name holders are expensive and cumbersome.
Without changes, a proliferation of lawsuits could lead to chaos as tribunals around the world apply the antitrust law and intellectual property law of their jurisdictions to the Internet.
Many commercial interests, staking their future on the successful growth of the Internet, want a more formal and robust management structure.
An increasing percentage of Internet users reside outside of the United States, and those stakeholders want a larger voice in Internet coordination.
As Internet names increasingly have commercial value, the decision to add new top-level domains cannot continue to be made on an ad hoc basis by entities or individuals that are not formally accountable to the Internet community.
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THE U.S. GOVERNMENT'S ROLE IN PROMOTING CHANGE
On July 1, 1997, as part of the Administration's ''Framework for Global Electronic Commerce,'' President Clinton directed the Secretary of Commerce to privatize management of the domain name system in a manner that increases competition and promotes a contractually based self-regulatory regime to address potential conflicts between domain name usage and trademark laws on a global basis.
Accordingly, on July 2, 1997, the Department of Commerce issued a Request for Comments (RFC) on DNS administration, on behalf of an interagency working group previously formed to explore the appropriate future role of the U.S. Government in the DNS. The RFC solicited public input on issues relating to the overall framework of the DNS system, the creation of new top-level domains, policies for registrars, and trademark issues. During the comment period, over 430 comments were received, amounting to some 1500 pages. That RFC was followed by a January 30, 1998, proposal for comments issued by NTIA, the ''Green Paper.'' Following the closure of the comment period, NTIA issued its Statement of Policy on the Management of Internet Names and Addresses (the White Paper). The White Paper called for the creation of a new, private, not-for-profit corporation responsible for coordinating specific DNS functions for the benefit of the Internet as a whole.
In response to the White Paper, private sector participants in a world-wide forum created the Internet Corporation for Assigned Names and Numbers (ICANN). In late November of last year, just eight months ago, the Department of Commerce enterered into a Memorandum of Understanding with ICANN to collaborate on the design, development, and testing of the mechanisms and processes needed to transition DNS management to the private sector.
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TRADEMARK ISSUES
''Whois'' Database. The White Paper reflected most commenters' views that Internet users—including trademark holders—should have access to searchable databases of registered domain names that provide information necessary to contact a domain name registrant when a conflict arises between a trademark holder and a domain name holder. Specifically, the White Paper suggested that the following information should be available to anyone with access to the Internet:
up-to-date registration and contact information;
up-to-date and historical chain of registration information for the domain name;
a mail address for service of process;
the date of domain name registration;
the date that any objection to the registration of the domain name is filed; and
any other information determined by the new corporation to be reasonably necessary to resolve disputes between domain name registrants and trademark holders expeditiously.
Cybersquatting. Cybersquatting is the abusive registration of domain names by bad faith actors who seek to capitalize on the goodwill earned by trademark owners by hijacking Internet addresses. Domain names of successful businesses may be manipulated by predators who claim rights to use the domain names of well-known brands to exploit the goodwill that businesses have spent considerable years and financial investment creating. The predators who engage in this practice generally do so in order to mislead consumers who think that they are accessing the website of a reputable establishment, or to extort payment from the rightful trademark owner for the right to use their own name in online commerce.
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The Department condemns cybersquatting as a deceptive and unfair practice and as an impediment to the potential presented by electronic commerce. We are interested in protecting the public from the acts of people or entities that foster fraud and deny rightful trademark owners the chance to establish an easily accessible online address.
For cyberspace to function as an effective commercial market, businesses must have confidence that their trademarks can be protected. On the other hand, management of the Internet must respond to the needs of the Internet community as a whole, and not trademark owners exclusively. Thus the White Paper recommended a transition that would maintain the rights trademark holders have in the physical world, ensure transparency, guarantee a dispute resolution mechanism with resort to a court system, and possibly add new top-level domains. Of course, all of this must occur during the transition to private sector coordination of domain names and at the same time that competition is being introduced into the provision of registration services.
The White Paper suggested that the new management entity should adopt a number of specific policies designed to reduce domain name speculation involving another party's trademarks and, in general, to reduce conflict between domain name registrants and trademark owners. The recommended policies include:
1) Domain registrants should pay registration fees at the time of registration or renewal and should agree to submit infringing domain names to the authority of a court of law in the jurisdiction in which the registry, registry database, registrar, or the ''A'' root servers are located.
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2) Domain name registrants should agree, at the time of registration or renewal, that in cases involving cyberpiracy or cybersquatting (as opposed to conflicts between legitimate competing rights holders), they would submit to and be bound by alternative dispute resolution systems identified by the new corporation for the purpose of resolving those conflicts. Registries and registrars should be required to abide by decisions of the administrative dispute resolution (ADR) system.
3) Domain name registrants should agree, at the time of registration or renewal, to abide by processes adopted by the new corporation that exclude, either pro-actively or retroactively, certain famous trademarks from being used as domain names (in one or more TLDs) except by the designated trademark holder.
4) Nothing in the domain name registration agreement or in the operation of the new corporation should limit the rights that can be asserted by a domain name registrant or trademark owner under national laws.
The White Paper referred a number of specific issues for further study by the World Intellectual Property Organization (WIPO). The White Paper suggested that mechanisms that allow for on-line dispute resolution could provide an inexpensive and efficient alternative to litigation for resolving disputes between trademark owners and domain name registrants. A swift dispute resolution process could provide for the temporary suspension of a domain name registration if an adversely affected trademark holder objects within a short time, e.g. 30 days, of the initial registration. The White Paper specifically recommended the dispute resolution process as an issue for study by WIPO.
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The White Paper discussed the concern of trademark holders that domain name registrants in faraway places might infringe their rights with no convenient jurisdiction available in which the trademark owner could file suit to protect those rights. For example, at the time of registration, registrants could agree that, in the event of a trademark dispute involving the name registered, jurisdiction would lie where the registry is domiciled, where the registry database in maintained, or where the ''A'' root server is maintained. This issue of jurisdiction was also referred to WIPO for further study.
Trademark holders have also called for the creation of some mechanism for ''clearing'' trademarks, especially famous marks, across a range of gTLDs. Such mechanisms could reduce trademark conflict associated with the addition of new gTLDs. This issue was also referred to WIPO for further study.
The White Paper did not propose to establish a monolithic trademark dispute resolution process, but it did call for the establishment of minimum dispute resolution and other procedures related to trademark considerations. This issue was also referred to WIPO for study.
The White paper also proposed that a study be undertaken on the effects of adding new gTLDs and related dispute resolution procedures on trademark and intellectual property right holders.
WIPO completed its study of the issues referred to it by the White Paper on April 30, 1999. The process that produced the study included input from trademark and domain name holders and registries. The findings of this study were submitted to the board of ICANN and considered at its meeting in Berlin on May 25–27, 1999 (Berlin meeting).
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THE WIPO REPORT
In response to the request of the United States and other governments around the world, the World Intellectual Property Organization conducted the study called for in the White Paper. The WIPO Final Report of the WIPO Internet Domain Name Process (Report), issued in April of this year, made a number of recommendations related to the trademark issues identified in the White Paper. Those recommendations start with a series of ''best practices'' for registration authorities. The adoption of improved standard practices will very likely reduce the problems that exist between trademark owners and domain name registrants.
In particular, the collection and availability of accurate and reliable contact information for the domain name holder is essential if the system is to provide protection for trademarks. Contact details provide the principal means by which intellectual property owners can start the process to enforce their rights.
The Report recommended that where the contact details were inaccurate or unreliable so that the trademark owner could not contact the domain name holder, then the trademark holder should have the right to serve notice on the responsible registrar. If the registrar then verifies that the domain name holder cannot be contacted, the registrar should be able to cancel the domain name.
In addition, the Report listed the contact details that should be provided by the domain name applicants, e.g. name, postal address, e-mail address, voice telephone number, and fax number. The Report also recommended that such information be made readily available to the public.
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As to the issue of an administrative dispute resolution procedure, the Report recommended to ICANN that 1) all new domain name holders be made subject to the dispute resolution process, 2) the scope of any administrative procedure be limited to cases of bad faith and abusive registration, 3) the determinations made in the process would be limited to orders to cancel or transfer the domain name and allocate the costs of the procedure, 4) decisions could be appealed to national courts, and 5) the administrative procedure be done online, as cheaply and quickly as would be consistent with safeguarding all of the rights involved.
As to the possible exclusion from the domain space for famous or well-known trademarks, the WIPO Report recommended that a mechanism should be introduced whereby the owner of a well-known or famous mark could obtain an exclusion in some or all gTLDs for the mark if the mark is famous or well-known on a widespread geographical basis and across different classes of goods or services.
Finally, the WIPO Report recommended that any new gTLDs be introduced in a slow and controlled manner, after introduction of new practices and in a manner that will allow the experience with the new gTLDs to be monitored and evaluated. ICANN referred the recommendations in the Report concerning new gTLDs to the Domain Name Supporting Organization (DNSO) for recommendations on the topic to be submitted to the ICANN Board as the earliest practicable time after the August 24–26 Board meeting.
ICANN ACTIVITIES
On February 8, 1999, ICANN posted for public comment a set of guidelines to be followed in accrediting new registrars to provide registration services in the generic top level domains (gTLDs) of .com, .net, and .org. Although these so-called Accreditation Guidelines preceded the release of the final WIPO report in late April, ICANN anticipated and incorporated a number of its recommendations. Thus, by the time the Report was issued, ICANN had, for the most part, adopted the WIPO recommendations concerning best practices for registrars. ICANN has put into place some procedures to protect the privacy of domain name holders where requested.
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ICANN embraced WIPO's call for an administrative dispute resolution procedure for cases of abusive registrations in violations of another party's intellectual property rights. The ICANN Board in May asked the DNSO to begin the work necessary to implement these recommendations, and to report back at the next ICANN meeting in late August. In the meanwhile, ICANN accredited registrars have been working to develop a voluntary, uniform dispute resolution policy that will incorporate the WIPO recommendations on cybersquatting.
At its Berlin meeting in May, ICANN also referred the recommendations in the WIPO Report concerning exclusions for famous or well-known marks to the DNSO for further study and development.
CONCLUSION
In the few short months that ICANN has been in existence, it has addressed a number of issues of significant concern to intellectual property owners. Of particular importance—to both the trademark community and the copyright community—is the obligation of all ICANN accredited registrars to collect and make publicly available reliable and up-to-date contact information for domain name registrants. This is backed up by a required provision in the registration contract between registrars and registrants that provides for termination of the registration in the event that the registrant fails to respond to an inquiry about the accuracy of any contact information. In addition, ICANN has taken the simple, but potentially very powerful, step of requiring pre-payment for domain names. If properly implemented, this policy should substantially reduce problems with cybersquatting.
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ICANN's Domain Name Supporting Organization is working to develop procedures to implement the WIPO-recommended administrative dispute resolution procedure for cybersquatting. The DNSO is also expected to study further the recommendations related to famous marks as part of its work on possible new generic top-level domains.
As new competitors begin to provide domain name registration services, we have every expectation that ICANN and the competing registrars will continue to be sensitive and responsive to the need of trademark holders to protect their intellectual property. The voluntary undertaking by ICANN accredited registrars to develop a uniform dispute resolution policy is a good indication of the ways in which the Internet community can come together to address important issues such as the protection of intellectual property rights in the domain name system.
Thank you, Mr. Chairman. I would be happy to answer any questions the Committee may have.
Mr. COBLE. Mr. Pincus, permit me to put a three-part question to you initially.
First, in your opinion, who owns the intellectual property contained in the ''Whois'' database? Secondly, could Network Solutions unilaterally cut off public access to this database; and, if so, what would be the response of the Department of Commerce? And, finally, what is Commerce doing to ensure that there is guaranteed public access to accurate information in the database?
Mr. PINCUS. Chairman, I don't want to elude your first question, but the question of ownership is a difficult and complex one. I think ultimately what we are very confident of is the answer to your second question, which is that NSI does not have, regardless of who has the technical ownership, and we think even with respect to that there is a very strong argument that we do, but we are quite confident that Network Solutions does not have the ability to cut off public access to the ''Whois'' database, a database that I have to add was developed when NSI was the exclusive registrar pursuant to a cooperative agreement with the government. So all of that information came into the system as NSI was operating pursuant to its cooperative agreement.
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So our view is that that information can't be cut off. Indeed, the practice under the cooperative agreement for many years was that it was fully available to the Internet community, something that we recognized in the White Paper and urged that it continue. And access was only modified shortly before competition was to be introduced into the registrar business. So we have very strong views about that. We think that a cutoff would not be permitted under the cooperative agreement or any other existing law, and we have made that position very clear to NSI.
Mr. COBLE. As the Department of Commerce relinquishes control over the registration of domain names, Mr. Pincus, how can this subcommittee be assured that ICANN, by its nature an international organization, will adequately protect American intellectual property rights? In effect, it is ceding control. Are we potentially damaging American IP interests?
Mr. PINCUS. We think not, Mr. Chairman. Maybe I could briefly explain how we view the transition process as taking place. I think that will fully answer your question.
Right now, as I mentioned, we have a Memorandum of Understanding with ICANN to develop this private sector management system which has never been done before. That Memorandum of Understanding requires ICANN to operate consistently with the policies that were laid out in the White Paper, one of which, as I mentioned, relates to recognition and protection of intellectual property interests. So those policies are now binding on ICANN.
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We anticipate that if this project is successful and a private sector entity is developed that there would be a subsequent agreement that would, in effect, be the transitioning document and that that agreement would contain similar policy standards with which ICANN would have to comply. Obviously, a key element of that would be the intellectual property issues that we laid out in the White Paper.
I should add that another protection is the fact that, as it is organized, intellectual property constituents are a key element of the ICANN process and have the ability to contribute in that way to the development of ICANN policies. So we really have two separate protections.
Mr. COBLE. Let me try one more question before the red light illuminates in my eye.
Mr. Pincus, recently your Department asked ICANN to delay the implementation of a $1 fee for domain name registration, a fee that is supported by many intellectual property organizations. Along this same vein, on what did your Department base its approval of a similar $9 fee, dare we say tax, charged by Network Solutions to new registrars for use of the master registry?
Mr. PINCUS. Our view of the ICANN fee was not that it was illegal. It was just that before ICANN began to have a component of its board, which was elected, which will happen in November, we thought it was unwise to adopt a financing mechanism that had resulted in some controversy before there were elected members of the board who could participate in that decision. So our advice to ICANN was to eliminate the fee for now and really wait, put the decision of a permanent financing system on hold until there were some elected members of the board so the world and interested organizations could be clear that there had been full participation of the constituent groups in the development of that policy.
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The $9 fee that you referred to is the fee that NSI is entitled to charge as registree for the service of taking competing registrars' registrations and putting them into the central database for ''.com'', ''.net'', and ''.org''. Our cooperative agreement with NSI anticipated that NSI would be able to charge a fee based on reasonable cost plus a reasonable profit with respect to that service that it would provide to competing registrars. That was the basis for the recognition of that charge.
Mr. COBLE. Thank you, sir.
The gentleman from California, Mr. Berman.
Mr. BERMAN. Thank you, Mr. Chairman.
The White Paper makes certain recommendations. To what extent do you view it as your role to push ICANN, to push the registrars to meet the terms of those recommendations?
Mr. PINCUS. Congressman, we tried to strike a balance. We are trying to create private-sector leadership and a private-sector-led organization. So we do believe that, in the first instance, the development of policies and the development of a process for enforcing those policies should be in the hands of that organization. As I said however, we are now in a collaborative stage.
With respect to the dollar fee, there is a point which we think it is appropriate for us to at least give advice to ICANN about what we think the appropriate course of proceeding will be.
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So what I think we have tried to do is let the ICANN processes be created and worked but, at the same time, to watch them and certainly want to independently assure ourselves that they are compliant with the policies in the White Paper.
Mr. BERMAN. Well, for instance, you recently sent a letter, I guess, to Network Solutions regarding I guess the way they decided to disable the Internet site and moved access to ''Whois'', to the Network Solutions site. That is an example I guess of Network Solutions not undertaking the policy which is contrary to fair competition in your minds. Are there other situations where Network Solutions who, as they move from the sole registrar to just one of a number, are taking actions without first consulting with the government or meeting the policies that you think are appropriate?
Mr. PINCUS. We have discussed a number of those types of issues with NSI. One, as you mentioned, is the content and configuration of the Internet site.
Another that we have discussed is the availability, as I mentioned in response to the chairman's question, the availability of who had access to the ''Whois'' database, both earlier this year when access to that database was conditioned on agreeing to a quick wrap, conditions which in our view were not appropriate and would disable even the use of that database for working against intellectual property piracy, among other purposes.
Bulk access to the ''Whois'' database, bulk access to what are called the zone files, which are the files that are actually in the ''.com'' and ''.net'' and ''.org'' registries, as well as the basic issues that we are discussing with NSI which are ensuring that its operation of the registry, the central database, is under conditions and under supervision that assure that there will be competition and that its activities as a registrar competing with other registrars would be under the same conditions as those registrars so that we have a level playing field. And also under conditions that satisfy the policy concerns that we laid out in the White Paper with respect to intellectual property protection, among other things.
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Mr. BERMAN. Well, will you be willing to slow the ICANN process down if it is necessary to assure that the appropriate agreements are reached, dispute resolution mechanisms are adopted, meaningful mechanisms are in place to protect intellectual property? Will you be willing to—I mean, can you give us some sense of how you will push ICANN to push to make sure those things happen?
Mr. PINCUS. ICANN is in a difficult position. ICANN is trying to do two things at once. One is to get competition up and going, for which there is a great demand. The other is to get policies in place, including dispute resolution on other policies. It is under—my answer is yes. I, at least, have not heard from the intellectual property community the concern that right now the process is sort of moving along at a pace that requires it to be slowed down. ICANN has ensured that whatever dispute resolution procedures are adopted can apply to other registrars.
Mr. BERMAN. My time is up. Just the example that I have heard and I think from your testimony about that, but one of the accredited registrars, CORE, sort of is denying public access to ''Whois'', making it very difficult, public access to ''Whois''. Isn't that an example of something that is happening that is in contradiction to the policies?
Mr. PINCUS. Yes, and something that is very troubling to us. Ultimately, I am not sure that the whole process—in a case where an individual registrar is not complying with the accreditation agreement that they signed, which quite clearly would require a publicly accessible ''Whois'' database, then it would seem to me that that might be something that would be solved by dealing with that registrar, and maybe that registrar has to stop operating for a time if the problem has gotten so severe so that it can come into compliance with that requirement before more registrations are put into a system that no one has access to. But it obviously would be something that we would want to watch and take suggested action if it gets out of hand.
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Mr. COBLE. I thank the gentleman. Since time permitted opening statements by only Mr. Berman and me, let me say to the other members of the subcommittee, if you want to submit written statements for the record, that will be in order.
The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman, and I do have an opening statement that I would ask to be made part of the record.
Mr. COBLE. Without objection.
Mr. GOODLATTE. I want to thank you for holding this hearing on this very important issue.
Mr. Pincus, welcome. We are pleased to have you here.
Your Department has been criticized by some for putting the cart before the horse by pushing for the introduction of new registrars without first requiring each new registrar to have a dispute resolution procedure in place. Many are concerned that this lack of protection for intellectual property owners is creating a safe haven for cybersquatters and pirates. I wonder how you would respond to that criticism.
Mr. PINCUS. We want to get a dispute resolution system in place as soon as we can. There has been tremendous pressure from many elements of the Internet community to have competition move ahead. Right now we are in the test bed period where we are testing the technology that has been developed to allow computer registrars to technically do their work. Our view—at least I personally have not heard from many people who have said this problem is so severe that we should stop and shut down competing registrars until it is solved. Obviously, it is something that we would like to happen as soon as possible.
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On the other hand, the ICANN process is a consensus—is a process where policy is supposed to be developed based on consensus. So that is necessarily a somewhat time-consuming process. Unfortunately, ICANN has been criticized on the one hand for moving too swiftly and on the other hand too slowly. I don't know if that means they have got it just right, but I do think that reflects the tension that is inherent as we try to both move competition along and get the important policies in place.
Mr. GOODLATTE. One is speed and the other is pressure. You can put more pressure on the folks who are moving swiftly which we want to have accomplished at the same time they are introducing competitive options for Internet users, also taking steps to make sure that we are fighting cybersquatting and piracy online at the same time.
Mr. PINCUS. We are sensitive to that. My understanding is those registrars are talking among themselves and working hard to develop a policy, a uniform policy among themselves that they could then get up and running. We obviously want that process to go forward as quickly as it can.
Mr. GOODLATTE. Is the Department of Commerce satisfied that ICANN is doing all it can to make sure that the new competitive registrars live up to obligations contained in the accreditation agreement?
Mr. PINCUS. Again, that is an area where I think it is very important, especially with respect to the ''Whois'' responsibility and others, that ICANN be vigilant. My understanding is that ICANN is focused on those issues. We obviously stand ready to hear from people who think that it is not moving as swiftly as it can and more than willing to talk to ICANN about that and try to make sure that they are doing everything that they can to move that process forward.
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Mr. GOODLATTE. I note that within your Department, NTIA, has taken a lead role in overseeing the policy issues involving domain name registration. Has the patent and trademark office, which obviously has an interest in this as well, have they been involved?
Mr. PINCUS. The PTO has been intimately involved in all of the intellectual property issues relating to the domain name management system. They are the key people in the Department with respect to intellectual property issues, and their input is critical on those parts of the domain name system as we move forward. I think we have been very careful to make sure that they are involved in those discussions and that their input, as I said, is given very heavy weight.
Mr. GOODLATTE. Do they have a formal role in process? Are they required to be notified of actions on ICANN, for example?
Mr. PINCUS. We have a working group within the Department that is working on these issues; that has PTO people involved, NTIA people, and myself and people from the Technology Administration, for example, because of the technology issues involved. We don't have any formal system for notification. We could certainly set that up. I am not aware of a single intellectual property issue on which the PTO has not been intimately involved.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
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[The prepared statement of Mr. Goodlatte follows:]
PREPARED STATEMENT OF HON. BOB GOODLATTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. Chairman, I want to thank you for holding this timely and important hearing this morning. Over the past few years, we have seen the Internet explode into a revolutionary tool for business, communication, education, and commerce. Even so, the Internet is still in its infancy, and we are still struggling to determine how and when we should apply our existing laws to this new and growing medium.
One area in which the Internet has forced us to reexamine current law is in the area of intellectual property protection. One flash point of this debate can be found in the registration of domain names. Domain names are commonly known words that are used to enable the public to access a website on the Internet without forcing them to remember the Internet Protocol Number of the site. Until recently, the assignment of domain names has been the sole responsibility of Network Solutions, Inc., a Virginia-based company that has a cooperative agreement with the National Science Foundation to assign domain names for the .com, .org, and .net generic Top Level Domains. These are by far the largest Top Level Domains, and most websites are assigned domain names under one of these three Top Level Domains.
In the past few years registration of domain names has increased from several hundred per month in 1993 to a predicted one million in one month in 1999. While there were originally relatively few trademark disputes arising from the assignment of domain names by NSI, this explosion in registrations has been accompanied by an inevitable increase in the number of trademark disputes. Domain names are available from NSI, and now other registrars, on a first- come, first-serve basis. Although NSI has maintained a domain name dispute policy since 1995, it has been met with increased criticism in recent years.
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This criticism led the United States government to ask the World Intellectual Property Organization (WIPO) to undertake a study of the issue and to propose recommendations for the resolution of this growing problem. Following extensive discussions, WIPO released its final recommendations on April 30, 1999. The WIPO report highlights two key areas that must be addressed in order to adequately protect intellectual property interests within the domain name system: 1) open access to contact information and the ''Whois'' database, and 2) the implementation of an improved administrative dispute resolution process for dealing with cybersquatters, or those who register famous domain names in the hope of selling them to companies that place a high value on them.
These recommendations were made to ICANN, the newly formed, not-for-profit corporation established in 1998 to replace NSI as the entity responsible for administering policy for the exploding Internet name and address system. ICANN, or the Internet Corporation for Assigned Names and Numbers, was created in response to a proposal by the U.S. Department of Commerce to improve the technical management of Internet Names and Addresses. The Department of Commerce and ICANN signed an official memorandum of understanding on November 25, whereby Commerce and ICANN agreed to jointly design, develop, and test the mechanisms and procedures necessary to transition management responsibility for Domain Name registration functions to ICANN. Until the full transition is completed, the Department of Commerce remains responsible for monitoring the extent to which ICANN satisfies the principles of the White Paper as it makes critical registration decisions. While I have some concerns about the speed and manner in which ICANN is satisfying these principles, I look forward to hearing from our witnesses this morning, in particular from the Department of Commerce and from ICANN, as to whether they believe that adequate and timely progress is being made.
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While the two issues of access to the ''Whois'' database and cybersquatting prevention present a significant challenge to the world intellectual property community and to ICANN, these issues have been further complicated by the transition to competition in the registration of domain names. Until now, NSI has maintained a single, authoritative ''Whois'' database. With the introduction of competition, NSI is providing only a registry-level ''Whois'' service that simply gives the domain name and the sponsoring registrar for all registrations in the .com, .net., and .org Top Level Domains. Individual registrars keep the contact information on their own registrants. The lack of a uniform, interconnected ''Whois'' service makes it more difficult to track down trademark and copyright violators. An additional problem has arisen concerning who owns the information in the current ''Whois'' database. NSI claims that it has proprietary rights to the contact information currently in the database. I look forward to hearing from NSI this morning as to the basis for this claim, as I strongly believe that intellectual property owners must have open and free access to this information. I firmly believe that a fully accessible, integrated, accurate ''Whois'' database is one of the most important tools for ensuring the effectiveness of both the NET Act and the online-service provider liability provisions of the WIPO implementing legislation passed last year, in order to prevent violations of trademark and copyright rights on the Internet.
Finally, I look forward to hearing from our witnesses today about the WIPO recommendations to combat the practice of cybersquatting. I am interested in hearing whether our witnesses believe these recommendations are being implemented by ICANN in a timely fashion, whether they are adequate to effectively combat cybersquatting, and whether additional legislation is needed here in Congress to address areas not covered by WIPO in their recommendations.
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I thank our witnesses for being here this morning, and I look forward to an interesting and informative hearing. Thank you.
Mr. COBLE. The gentlelady from California, Ms. Lofgren.
Ms. LOFGREN. Thank you, Mr. Chairman.
I am enormously interested in this subject matter. I think it is a commentary on where we have come with the Internet, that a hearing of this nature would attract this many people, television coverage. A few short years ago you could have asked many Americans what is a domain name and you would have gotten a blank stare. We have come a long way, and there are many challenges that face us. And the decisions that we make here will really, I believe, affect the stage and affect the entire structure of the Internet well into the next century. So it is important that we react quickly but also very thoughtfully because missteps will haunt us for a considerable amount of time.
Thinking about the database issue that has already been touched upon, there was an agreement between NSF and the company. What is specified in that agreement relative to the database? Can you tell us that?
Mr. PINCUS. The agreement has a number of rights in data clauses. It also has a provision that we think is very significant which provides that at the end of the agreement all of the information and other data that has been gathered in the course of the agreement be turned over to NSF, now to the Department of Commerce, in a way that it would be possible for someone else to replicate the work that was done under the cooperative agreement. So, in our view, that is one of the things that makes it clear to us that, putting aside technical questions of ownership for the moment, there can really be no debate about the right of the public to access to the ''Whois'' type information. As I say, in the course of dealing, to me, especially when you have an agreement like this, is important in the course of dealing for a long period of time under the agreement was that this data was made freely available. To me, that is a very important indicator of how it should be interpreted.
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Ms. LOFGREN. We are presently before the intellectual property subcommittee. A key issue is how intellectual property rights are maintained. I note the recommendation that there be alternative dispute resolution mechanisms. I think there is broad agreement that that make sense. But thinking not very far ahead, as we increase competition, and use multiple registrars and those registrars will not be limited to the United States. How we adopt uniform administrative dispute resolutions that reflect the intellectual property laws that we were elected to protect shall become ever more complex. How one structures ADR can also greatly affect the decision, that is, the outcome of the ADR.
As I think about ICANN, I think ICANN makes a lot of sense in many ways in terms of not being too government driven. However, there is also the question of how we insert the public policy direction into ICANN and its structure, especially as to the exploitation of intellectual property. Do you have some thoughts on how we might achieve that, given ICANN's current structure, or whether we should review the structure with that in mind?
Mr. PINCUS. That is one of the reasons that we called for the WIPO study, frankly. We are recognizing the global structure of the medium. We thought it was important to have an entity that has global expertise but has intellectual property concerns at its heart, really study these issues in depth and come forward with recommendations.
As I said, we are very impressed both with the speed and thoroughness with which WIPO carried out that job. Those recommendations have a lot of substance in terms of how to structure the ADR process. We are hopeful that they will be speedily implemented by ICANN.
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ICANN has a process of the domain name supporting organization looking at those with the directive to report back to the board in November, and we are looking forward to that report. I think that is one way to do it. As I said, ultimately, the way that we see to ensure that ICANN on an ongoing basis functions in a way that is consistent with proper public policy is in both the MOU and in our subsequent agreement with ICANN, if we get to that point, really making clear that the governing public policy principles that we have set out are ones that ICANN has to comply with on an ongoing basis.
Ms. LOFGREN. Just in closing, you think WIPO answers this fully?
Mr. PINCUS. I think WIPO has supplied a lot of—has really put the meat on the bones of the ADR process. I don't know that every detail is there, but a lot of it is there.
Ms. LOFGREN. Thank you.
Mr. COBLE. I thank the lady.
The gentleman from Indiana, Mr. Pease.
Mr. PEASE. Thank you, Mr. Chairman, and thank you, Mr. Pincus, for being here today.
As we are looking into the future, it is going to be helpful for me to know a little bit more about where we are right now. In that regard, I would like for you to tell us a bit with how conflicts now between holders of trademarks and those who register a domain name, that is, the same words or same numbers of combinations as something that is already trademark protected, are resolved or not.
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Mr. PINCUS. NSI has a dispute resolution system, although one that I think some have criticized. I don't think that it satisfies or has all of the ingredients that WIPO recommended, as it couldn't since it was developed before the WIPO recommendations. That is one venue.
Another venue is the court system. There has been, as I am sure the subcommittee is aware, a number of court cases in the United States where mark owners have sought to rely on Federal law to enforce their rights and to prevent the registration or use of a domain name that infringes on those rights.
Mr. PEASE. Can you tell us what has been the success in that endeavor?
Mr. PINCUS. There has been a fairly good success rate on those issues. There was a recent Porsche decision that I think deals with it, the question of in rem and when a name is held but not actually in use. So anti-dilution and other claims can't be asserted, whether that is the kind of claim that has been asserted. It is a costly process and, obviously, I think one thing that marks owners would like, and we agree, that ADR would provide us a more efficient way to enforce those marks. Obviously, as we get more global there is a concern about jurisdiction. And that is one of the reasons why, as I say, although I think those cases, by and large, have been pretty successful, there is a need for an alternate way to provide for enforcement.
Mr. PEASE. Is it your understanding that the state of the law on this subject is not in dispute, that mark protection includes use of names in this arena?
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Mr. PINCUS. Yes. As I said, with the caveat that they have to actually be being used. Since one of the evils of cybersquatting is sometimes warehousing of names but not using the web site and the name, that is the one area where there is a bit of an issue.
Mr. PEASE. Does the Department have any recommendations for changes in the trademark law on this subject or are you in the process of reviewing that?
Mr. PINCUS. We are reviewing that issue. I think our preliminary conclusion is that, with the ADR process going forward and hopefully implementing soon, it is not clear to us that there is a need right now for changes in the law.
We do have a bigger concern, as we do in many areas of Internet policy, that if we were to go ahead and enact an Internet-specific law then other countries who might make policy judgments different from us would do so and that might actually make the international situation worse. So to the extent that we can come up with a good and effective ADR system, that might be the best approach.
Mr. PEASE. Thank you.
Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
The gentleman from Massachusetts, Mr. Delahunt.
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Mr. DELAHUNT. Thank you, Mr. Chairman.
I am pleased to hear that you are encouraged by the WIPO recommendations. Let me just follow that with another question. In terms of any recommendations by WIPO that would obviously have to be implemented by signatory governments through their parliaments, have you in any way evaluated the attitudes of parliaments elsewhere that would be engaged in this particular issue?
Mr. PINCUS. I don't think that we have done—we really haven't looked into that. Our hope has been that much of what WIPO has recommended can be implemented through—it is directed at the registration process. So unless there is, as I say, some interference by other governments, by enacting, overlapping, or conflicting legal standards, we don't see that happening.
Mr. DELAHUNT. You don't see that happening?
Mr. PINCUS. We don't see that happening right now. My understanding is that the process has met, if not a claim, at least a lot of respect. I think that WIPO was able to generate a fair amount of consensus around its recommendations.
Mr. DELAHUNT. I understand, Mr. Pincus, that Network Solutions has asserted ownership of the intellectual property rights to the material contained in the ''.com'' directory. Do you understand the legal basis for that assertion?
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Mr. PINCUS. I think it rests on NSI's interpretation of some of the specific data rights clauses of the cooperative agreement and also NSI's more general conception of the cooperative agreement with which we disagree, which is that it was essentially an agreement to allow the private sector entity that manages ''.com'', ''.net'', and ''.org'' to get up and running. And at the termination of the cooperative agreement there is no further government supervision and oversight and no ability of the government to reassign these responsibilities elsewhere. It rests on both of those views with which we disagree, as we say.
Mr. DELAHUNT. As you know, Mr. Pincus, this committee recently reported out a database protection bill which expressly excludes protection of such Internet-related collections of information. In view of the NSI claim, is it important in your opinion to pass this measure to preserve the public access to the directory?
Mr. PINCUS. I think you are right, Congressman. Actually, I haven't thought about that, but I guess passage of something that excludes that would provide another basis, at least would make clear Congress's view that there is no protection there.
Mr. DELAHUNT. Thank you. I yield back.
Mr. COBLE. I thank the gentleman.
The gentleman from California, Mr. Rogan.
Mr. ROGAN. Mr. Chairman, thank you.
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Mr. Pincus, good morning.
Mr. PINCUS. Good morning, Congressman.
Mr. ROGAN. I think one of Chairman Coble's first questions dealt with the ''Whois'' database, and that is the list of current owners of Internet domain names. The question the chairman posed was, who owns that, and I am afraid I didn't hear the answer.
Mr. PINCUS. As I said in response to the chairman, our view is that it is a somewhat more difficult question. I think, ultimately, we would come to the conclusion that the government owns that, upon close examination. But we don't think that ownership is really the question that has to be resolved in terms of maintaining the access. That has been historically true up until earlier this year because we believe that the critical question is really whether the cooperative agreement allows the kind of termination of access that has happened. On that we are quite, quite clear, that, regardless of technical ownership, there is another question which is a use easement, if you will. I think we are quite clear that there is no basis for overriding that.
Mr. ROGAN. But use easements are only relevant once ownership has been decided. I am unclear as to why that is a difficult question for the Department of Commerce to answer and why that you have such reticence in——
Mr. PINCUS. I don't have reticence. I think in terms of the relative—the legal clarity of the two, as I say, ultimately, we think that we are right on both of them. But I think we have a very strong argument with respect to the use issues. So even assuming arguendo that we were to lose on ownership, we wouldn't want anyone to have the view that that was the issue on which access rose or fell, because we think this other argument is very powerful as well.
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Mr. ROGAN. Thank you. I assume if ever down the road if the question of ownership came in doubt, the Department of Commerce would have no hesitancy to assert its rights on behalf of the United States in that regard?
Mr. PINCUS. No. As we have made clear to NSI, both orally and in a letter that I sent to a chairman of NSI on Friday with respect to the new directory product they are offering, we feel very strongly about this issue both because of rights of the United States and also because of the competitive implications of NSI's current position.
Mr. ROGAN. How was the ICANN board selected? They are, what, 19 members now?
Mr. PINCUS. There are, I think, 18 members plus a chairman. There are nine now. Ultimately, there will be 18. The interim board has nine members.
Mr. ROGAN. How are they selected?
Mr. PINCUS. I have no personal knowledge about it. My understanding is that, as part of ICANN's application to be recognized as this not-for-profit corporation pursuant to the White Paper, the application included a list of the interim board members.
Mr. ROGAN. Do you know how the ultimate 19 board will be selected?
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Mr. PINCUS. Yes. There will be a two-step process. Nine members will be elected by the so-called supporting organizations, three each from the three constituency organizations that are part of ICANN. That is going to happen so that those individuals can be seated and on a time line so that they can be seated at the board meeting scheduled for November. The other nine elected members would be elected from an at-large membership through a process that ICANN is working on designing and on a time line to do that next year.
Mr. ROGAN. This will be an international organization, not a domestic organization?
Mr. PINCUS. It is a California corporation actually, but its constituency is and will be international, and indeed that was one of our criteria, given the international nature of the Internet and the pressure we were under from other parts of the world, to be sure that there was international input.
Mr. ROGAN. Does the Department of Commerce have any concerns that we will be ceding incredible authority over regulating the Internet to an internationally based organization, rather than doing it domestically through the Department of Commerce or some other American institution?
Mr. PINCUS. Our view was that the options that were available at the time, given that we thought privatization was the right way to go, was to have an organization that had international input but with which we had an agreement that would ensure that it would operate according to the policy principles that the United States Government felt were important.
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As I said, we have done that in the MOU under which we are currently operating with ICANN, and we definitely intend to continue that kind of obligation on ICANN in whatever subsequent agreement we enter into that ultimately would transition. So transitions—I think responsibility would be transition, but subject to the policy conclusions that the United States Government feels are important in this area.
Mr. ROGAN. Thank you.
Mr. Chairman, I see my time has expired. I ask unanimous consent to also submit my opening statement for the record.
Mr. COBLE. Without objection.
[The prepared statement of Mr. Rogan follows:]
PREPARED STATEMENT OF HON. JAMES E. ROGAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, thank you for calling this hearing. In the past, Congress has been criticized for acting too fast, or indeed, too slow when responding to the changing needs of the technology community. Today, we have the opportunity to act promptly and effectively to ensure that the market for business development on the Internet and with Internet-related businesses remains healthy, competitive, and fair.
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The basis of the Internet and electronic commerce is the domain name. As the distinguished gentleman from North Carolina noted, the number of domain name registrations has increased from about 100,000 to well over 7 million—just in the 4 short years I have spent in elected, public service.
As the number of those both providing services and seeking their fortune in technology-based industries continues to rise, it is incumbent upon us to ensure both equity of access to registration services for entrepreneurs and corporations, and to foster a competitive marketplace.
Mr. Chairman, this issue is of particular importance to my constituents. My district is home to Earthlink Networks, one of the top four Internet Service Providers in the nation. This company has grown exponentially in the last three years—benefitting both shareholders and members of the community who have found new jobs, new careers, and fresh opportunities.
The core growth of Earthlink is based on providing one service: quality Internet access. This in turn, has paved the way for thousands of small businesses in my district to enter the growing world of electronic commerce. The integrity of these businesses is staked not just in the old paradigm of location, access and service. It is based in the new paradigm—under our jurisdiction—the integrity of their intellectual property: the domain name.
Mr. Chairman, as we move forward today, we must balance the needs of consumers with the rights of business owners and ensure that growth and productivity from Internet-related businesses continue unhindered. We must also ensure that those, like ''cyber squatters'' who break the law, stand accountable under law.
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The foundation of the Internet economy is the domain name. Intellectual property and the protection of domain names gives this committee a front row window into a rapidly growing economy. With this seat comes great responsibility, and I look forward working with both my colleagues on the committee, and experts in the field to craft sensible legislation to protect the intellectual property at the core of the Internet.
I thank the Chairman for calling this hearing, and yield back the balance of my time.
Mr. COBLE. The gentleman from Utah, Mr. Cannon.
Mr. CANNON. Thank you, Mr. Chairman.
Just following up momentarily on the question Mr. Rogan was asking, is it true that the majority of the members of the board currently are foreign nationals, not Americans?
Mr. PINCUS. I am not sure. Let me ask one of my colleagues.
Mr. Roberts will probably definitely be able to answer that question. I don't know. I am not sure of the nationality. Five U.S. And—five and five I am told.
Mr. CANNON. We have 10 members, and half of those are not Americans. Thank you.
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There has been a spate of publicity about registering obscene names on the Internet. It is my understanding that NSI had a policy of filtering those names which are obscene. You had five of the least agreeable of the words in our American lexicon. Then there are a couple of hate-based words that were precluded. Are you familiar with this issue?
Mr. PINCUS. Yes, I know that NSI has had that policy, and NSI has been—there are a number of lawsuits involving it, and we have recently been joined in one of the lawsuits against NSI based on that policy, which I gather they have now rescinded.
Mr. CANNON. Did they rescind it or did you and your Department influence the ability that they had as a private organization to filter out those words?
Mr. PINCUS. No, we have quite carefully taken no position on it. I think we think registration of names containing those words is not a good thing, but we have been very cognizant of the first amendment limitations on the government's ability to direct—to control the use of certain words. So one of the things we have been careful about, and indeed NSI's line of defense in the cases in which this policy has been challenged, is to make clear it is not ''state action,'' it is not government directed, it is something that NSI did.
Mr. CANNON. It is very important that it not be government directed. Haven't you been in the process of negotiating an agreement with NSI, and isn't it true that the language in that agreement allowed them to filter those words was removed by your Department? You or whoever in your Department was negotiating.
Mr. PINCUS. I don't believe so. Certainly not knowingly. No one has ever told me before, either in the courts of negotiating with NSI or after, that something we did in one of our agreements affected their ability to do that.
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Mr. CANNON. Have you been personally involved in the negotiation of those agreements?
Mr. PINCUS. With NSI, yes.
Mr. CANNON. Are you aware of the language that they have had that was a matter of concern in the agreement that they wanted to maintain which would allow them to filter words?
Mr. PINCUS. I wasn't aware that anything that we were doing affected their ability to do so, and if they had brought it to my attention, I certainly would have done whatever I could to allow that to continue.
Mr. CANNON. Are you the final say on what goes into that contract in your Department?
Mr. PINCUS. We have a process—ultimately Secretary Daley has the final say on everything. We have a group of people, negotiating team, if you will, that includes, as I mentioned, people from various parts of the Department. But I was personally involved in those negotiations. I——
Mr. CANNON. Secretary Daley would be the final word. But in the team negotiating it, are you the——
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Mr. PINCUS. I am the senior person, yes.
Mr. CANNON. And you are telling us now you were not aware or not made aware by NSI that certain language changes would preclude them from filtering these obscene and hateful words?
Mr. PINCUS. No—let me just ask my colleagues, one of whom is here, who is also involved in those discussions. No, we were never told that.
Mr. CANNON. Let me understand. From your point of view, it would have been important to leave in the private sector without governmental action the right for NSI to filter those words if that were possible, and you would have argued in the course of those negotiations to leave that right with NSI, if it had become clear to you that was what was at stake?
Mr. PINCUS. If someone raised the issue, yes. The issue never came up, but we certainly had no intention of eliminating NSI's ability as a matter of its own decisions to decide what names to register, and if someone had said something we were doing in the contract negotiations would have done that, unless it would have had some other impact that I can't imagine, we obviously wouldn't have wanted to do that.
Mr. CANNON. I don't know what the status of your negotiations is, but this matter is important, particularly the hate words. Are you familiar with what those two hate words were they were filtering?
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Mr. PINCUS. I believe so, yes.
Mr. CANNON. I see my time has expired unfortunately. May I just—thank you.
Mr. COBLE. Go ahead. Did you have another question?
Mr. CANNON. I have one quick question, and that is about Y2K compliance. Has the Department worked at all with the various organizations—through the root zone servers to see that the system is Y2K compliant?
Mr. PINCUS. Let me just check with my colleagues. I believe the answer is yes.
Mr. COBLE. Ma'am, you may join him at the table if you like.
Mr. PINCUS. I don't know the answer to that, but I can get you the answer to that, Congressman.
Mr. CANNON. I would appreciate a written response.
Mr. COBLE. Folks, we will not have a formal second round of questions, but let's try an informal second round if there are additional questions.
I have one more question. Oftentimes, Mr. Pincus, hypothetical questions can be loaded, and I don't intend for this one to be loaded.
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Let us assume NSI refuses to sign on with ICANN and abide by the accreditation requirements. Will the Department of Commerce cancel the cooperative agreement with NSI to ''encourage'' them to live under ICANN, and what if anything can this subcommittee do to assist by maybe clarifying the law regarding ownership of the ''Whois'' database?
Mr. PINCUS. Mr. Chairman, we have been very clear that our preferred course and one that we have every reason to believe we will be able to realize is to reach an amicable resolution of the outstanding issues with NSI and move forward on all the issues that I outlined in response to Congressman Berman's question.
On the other hand, if that is not possible, we believe that our obligation to the public is to take appropriate steps to move toward competition, and in our view the appropriate step would be to recompete the responsibility for managing the registry, the central database, and award the responsibility for performing that function to whomever wins that recompetition.
Obviously, NSI has a different view, and a lot of lawyers would probably make a lot of money, at least on the non-government side, if we took that course. But we think that would be our only choice if we were forced to go down that road.
Mr. COBLE. Thank you, sir.
Mr. Berman or anybody have additional questions? Ms. Lofgren
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Ms. LOFGREN. Just really quickly getting into the whole issue of how one enforces or encourages or arrives at uniformity, which I was trying to get at in my first round. ICANN will be encouraging registrars to develop models and then that will be voluntarily adopted in terms of alternative dispute resolution. But I am thinking ahead to a year from now. There will be competition, there is no question. There is competition now, there will be more competition, and I am thinking how do we avoid sort of the tax-haven phenomena, the registrar shopping by those who really are not interested in avoiding abusive registrations or dispute resolutions that don't call them to generally acknowledged world standards for IP? What are our thoughts about enforcing uniformity, or is that impossible to do?
Even thinking about this, ICANN is charging a fee now, NSI is not. People who are just interested in the small impediment, that will—you know, the Internet is like water. It flows where it is easy to go.
Mr. PINCUS. Well, with respect to the newly accredited registrars, putting NSI to the side for a moment, ICANN has the contractual authority to, once a dispute resolution is developed through its processes, which is now going on, consideration and sort of finalization after the WIPO recommendations, it can require all of the accredited registrars to follow that ADR system. With respect to those registrars, there is really no problem. They can be bound to whatever detailed system is developed pursuant to the WIPO recommendations.
With respect to NSI, as we said, since they are not operating pursuant to an agreement with ICANN right now, there is a different story. The answer I gave to the chairman I guess applies to this as well. Ultimately, we have to—we hope we can reach the point where they will, and therefore NSI will implement the very same ADR system that bubbles up through the ICANN process and signed onto by the other registrars. If that doesn't happen and we can't reach an agreement toward that result, then we will have to look toward a recompeting of the cooperative agreement and reassigning of those functions in order to make sure that there is competition among registrars on a level playing field, and also that all of those competing registrars have the right and appropriate protections for intellectual property.
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Ms. LOFGREN. You are saying ICANN is going to hold all of the cards in terms of controlling route. That gets us into the question of the stability of the Internet. We are interested in intellectual property, but we ought not to overlook this.
Mr. PINCUS. That is why we hope all of these issues can be resolved amicably. Obviously, if we get into a fight, there are all kinds of concerns ultimately about the stability of the Internet that we think we have to do everything to avoid, and we have every hope we will avoid. But, ultimately, it is not only control of the route, it is our view that the cooperative agreement—that the United States retains authority to decide who can register a name in .com, not .org and .net, both by virtue of the cooperative agreement and by the government's control over the route.
Ms. LOFGREN. Thank you, Mr. Chairman.
Mr. COBLE. Mr. Rogan, do you have a second question?
Mr. ROGAN. Mr. Chairman, thank you.
Mr. Pincus, when you talk about an alternative dispute resolution, the system down the road, are you working within any conceptual framework as to how that would be organized? Would that be an international court, if you know, or be domestically based?
Mr. PINCUS. I think it will have to be somewhat internationally based, because a number of the registrars are not domestic. So at least we have to have an ADR system that can be used around the world, although because a lot of this can be done on line, the actual place where it is located is not necessarily determinative.
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But I think what we are looking toward is the WIPO recommendations on this issue, which laid out in some detail how an ADR system might be structured, and I think we have generally supported the outcome of that process, as has I think most of the intellectual property community. So we see that as a good basis for moving forward to finalize the details of the system.
Mr. ROGAN. Will there be any protection in place or will there be any process in place so that down the road we will not have to be concerned that perhaps some internationalist board members who don't share our same intellectual property appreciation would use their position to start imposing onerous regulations on the Internet, such as taxes and fees as they have attempted to do in the past, with that $1 tax, if you will? I know they have made some systemic changes. They were under a lot of criticism, meeting in secret, imposing fees. There didn't appear to be any accountability. That is where my concern is with the structure of ICANN as of this date.
Mr. PINCUS. As you know, Congressman, we were concerned about some of those things as well, and we urged ICANN to take a number of steps to respond to criticisms, including putting off the question of fund-raising, opening board meetings. We think it is important for ICANN to include in its contractual agreements and its bylaws, and we would certainly include in our agreements with ICANN, a specification of exactly what ICANN's function is, because ICANN's function really is to make the decisions that are necessary to allow the domain name system to function. It is actually a limited sphere, and we think making that clear, and if you will, delineating clearly what the area of competence is, is another way to protect against some possibility that in the future if something might happen that would lead ICANN to do things that none of us would want. So that is another protection that we think is important to put in place.
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In addition, as I mentioned in the current MOU and subsequent agreements with ICANN, we are going to make sure that both procedural guarantees are in place and substantive guarantees are in place to ensure that ICANN has an obligation to the U.S. Government to function in a manner that is consistent with the policies that we laid out in the White Paper.
Mr. ROGAN. Is it fair to conclude that that limited sphere of which you just spoke was initially contemplated for ICANN's role and then they moved beyond that limited sphere and started operating on a much broader policy level?
Mr. PINCUS. I am not sure. I think I agree with you that the limited sphere was contemplated, and it is something we have been clear on from the very beginning. ICANN is not a broad Internet governance organization. It is to focus with a laser on the domain name management system.
They have been criticized for moving beyond it, I think. Some of the things, like the fee, again, we think that was not an appropriate decision until there is an elected board. Ultimately, there has to be some way of financing the organization. So the area of financing doesn't seem like something that was completely beyond the pale, although, as I said, it seems to us something that had to be done, should not have been done until there were elected board members who could make it clear that the constituents were being properly represented by the boards.
Mr. ROGAN. Thank you, Mr. Chairman.
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Mr. COBLE. The gentleman from Massachusetts.
Mr. DELAHUNT. How is ICANN currently being financed, Mr. Pincus?
Mr. PINCUS. ICANN is currently being financed on donations from——
Mr. DELAHUNT. Who are the donors?
Mr. PINCUS. I believe Mr. Roberts can speak to this with more specificity.
I think a number of companies who are concerned about the future of the Internet have donated money to keep ICANN afloat. I think they have a substantial negative net worth right now, and, ultimately, of course, they have to finance themselves somehow. But given the fact that half the boards will be elected shortly, we think that is a decision they should make at that time. We have said we will do anything we can within the law to help them through this period.
Mr. DELAHUNT. In response to a question by the chairman, I would just make the recommendation in terms of the role of this particular committee, given the potential tension between the protection of intellectual property rights and the growth of the Internet, that this particular issue, this discrete issue, clearly warrants the exercise of frequent oversight hearings by this subcommittee.
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Mr. PINCUS. We would be happy and eager to have that opportunity for dialogue as this moves forward.
Mr. COBLE. I thank the gentleman.
The gentleman from Utah, Mr. Cannon.
Mr. CANNON. Thank you, Mr. Chairman. A couple of questions only.
Mr. Pincus, is the Department's position that the authoritative root zone server should remain in the U.S.?
Mr. PINCUS. Yes.
Mr. CANNON. Do you have some ability to actually control that in the relationship with ICANN?
Mr. PINCUS. ICANN right now, the authoritative route server is not under the control of ICANN. We believe it is quite clear the government has control over that. It is being managed by NSI now pursuant to an agreement that we have with them. But we think it is crystal clear that the government has control over the authoritative route server.
Mr. CANNON. And the government means, at this point, your Department?
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Mr. PINCUS. Yes, the Commerce Department.
Mr. CANNON. Mr. Chairman, you were kind enough to suggest that one of Mr. Pincus's staffers join him at the desk. I am actually deeply troubled by this transition in obscenity or the allowing of obscene and hate-based words that have been filtered out by NSI. I was wondering if the Chair would indulge Mr. Pincus by allowing him to have whichever staffer understands this issue best join him so I could ask a couple of questions.
Mr. COBLE. Without objection, fine.
Mr. PINCUS. Becky Burr with NTIA is here. I think she has one additional fact to add.
Mr. COBLE. Ma'am, if you will for the record identify yourself and your title.
Ms. BURR. My name is Becky Burr. I am the Acting Associate Administrator of NTIA.
Mr. COBLE. Mr. Cannon will now examine you, Ms. Burr.
Mr. CANNON. I appreciate your coming to the table, Ms. Burr. Are you aware of what the transition in the contract between the Department and NSI was that resulted in at least others who register through them having the ability to use—get around the mechanism that filtered obscene words from the Internet?
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Ms. BURR. I don't have the NSI registrar and license agreement in front of me, so I haven't been able to review it. There are some provisions in that that really relate to not using the Lanham Act as a basis for not registering names, I believe. That is the only thing I can think of that relates to the questions you are raising.
Mr. CANNON. Did the Department take a position that required a change in the language in those agreements that resulted in allowing these names to be unfiltered and to go on as domain names?
Mr. PINCUS. I think I have an idea of what you may be getting at. Maybe I can—I think the agreement you are referring to is the agreement that we had to approve. It is the agreement between NSI and the competing registrars which licenses the NSI-developed software which they have to use to submit registrations to the database.
I don't recall in connection with that agreement any discussion of this issue. I think I would have, and I think we would have been sensitive to it. I know that I was in all of the discussions.
We did have a sort of a structural debate with NSI, and maybe this is what you are referring to. It was NSI's position at the onset of those discussions that NSI's—ICANN should not have a direct relationship with the competing registrars and that those registrars should be required—the way they would be required to comply with ICANN policies on issues such as what has to be in a ''Whois'' database to make sure it is useful for intellectual property owners would occur by ICANN contracting with NSI and then NSI sort of flowing through those requirements to the competing registrars.
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It may be, although this was not mentioned, that some have the view that, if that happened, NSI might have been able to, in that agreement, have some provision relating to this question.
As I say, this issue didn't come up. If it had come up specifically, we could have addressed it. If the way it was raised was in this—as part of this—if it was raised implicitly by this sort of structural question, we had great concerns, public policy concerns, with the structure that would interpose NSI between ICANN and the competing registrars. We just thought as a matter of public policy and especially competition policy that was not a good structure and not one that we could sign on to.
But as I say, even in those discussions, this particular issue never came up.
Ms. BURR. It is quite clear, however, in all of the agreements that any registrar is entitled to have a policy that limits their ability—limits what names they will register.
Mr. CANNON. NSI continues to use their filter.
Ms. BURR. I gather NSI has dropped their filter.
Mr. PINCUS. They have unilaterally dropped their filter.
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Mr. CANNON. They have dropped their filter. Is that their filter of other names they are registering or is that names they themselves register?
Mr. PINCUS. The names they themselves register. They have unilaterally—as I understand it from reading press accounts, they have decided to rescind their policy broad ban to the registration of the names containing the words you are referring to.
Mr. CANNON. I ask unanimous consent for one additional minute.
NSI does two things, as I understand it. They register names in .com and .org and .net. Are they at this point registering obscene names and not using their filter for those three extensions, to your understanding?
Mr. PINCUS. That is my understanding, just from reading articles in the paper. I haven't talked to them about it.
Mr. CANNON. As opposed to registering names from others who have announced they are going to allow those obscene words?
Mr. PINCUS. That is my understanding.
Mr. CANNON. That is something NSI will want to clarify when they come up.
Thank you, Mr. Chairman.
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Mr. COBLE. I thank the gentleman and lady for joining us. Mr. Pincus, I get the distinct feeling we will be in touch.
Mr. PINCUS. It will be a pleasure, Mr. Chairman.
Mr. COBLE. Good to have you with us.
I will ask the second panel to come forward.
I am going to give the introduction to the second panel. It will be somewhat extended, but I think it is significant that you all know the background and the credentials that these people bring to the table. So in the order of the name that I call, please come forward.
Our first witness on the second panel today will be Mr. Francis Gurry, the Assistant Director General and Legal Counsel of the World Intellectual Property Organization, WIPO, in Geneva. Mr. Gurry is responsible for WIPO's activities in the field of electronic commerce and the WIPO arbitration and mediation center, as well as for international legal and constitutional questions and the organization's relations with industry.
Mr. Gurry, we are taking on an international flavor today. You get the prize for having traveled the greatest distance to be here. We also have a witness who came to us from our neighbor to the north in Canada.
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Our next witness is Mr. Michael Roberts, who is the Interim President and CEO at Internet Corporation for Assigned Names and Numbers, ICANN. Mr. Roberts is a policy consultant in the field of Internet technology services and product development with a specialization in research and education. He recently retired as vice president at EDUCOM, a consortium of 600 universities and colleges with interests in information technology, where he was responsible for networking and telecommunication programs, including the development of public policy positions and information technology on behalf of EDUCOM members.
Our next witness is Mr. Michael A. Daniels, who has 25 years of business management experience in high-technology industries. Mr. Daniels serves as Chairman of the Board at Network Solutions, Inc., NSI. In addition to his leadership at Network Solutions, Inc., Mr. Daniels serves as secretary-vice president of Science Applications International Corporation, SAIC, a $5 billion high-technology firm. He is also SAIC's senior manager for global Internet business strategy.
Mr. Daniels is joined today by Mr. Philip Sbarbaro, Network Solutions' outside chief litigation counsel.
Our next witness is Mr. Jonathan C. Cohen, who is President of the Intellectual Property Constituency of the Domain Name Supporting Organization, DNSO. He is also a senior managing partner of the Shapiro Cohen Group of Intellectual Property Practices located in Ottawa. Good to have you with us.
Mr. Ken Stubbs, our next witness, is Chairman of the Executive Committee of the Internet Council of Registrars, CORE. Mr. Stubbs has 24 years' experience in specialized business consulting services. He has served as web presence consultant since 1994, with Internet experience centering primarily on commercial use.
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Ms. Kathlene Karg, who is the Director of Intellectual Property and Public Policy for Interactive Digital Software Association, is our next witness and is here today on behalf of the Copyright Coalition on Domain Names, an organization representing copyright owners in music, sound recordings, audio-visual materials, and text products, in addition to software. Formed in 1994, the Interactive Digital Software Association is the only United States' association exclusively dedicated to serving the business and public affairs interests of companies that publish video and computer games for video game consoles.
Ms. Karg oversees the development and implementation of anti-piracy programs for the international markets, the United States' market and the on-line market, develops policy for intellectual property and other matters, such as electronic commerce, and trains United States and foreign law enforcement personnel on how to properly enforce intellectual property rights.
Our next witness is Mr. Mike Kirk, who is the Executive Director of the American Intellectual Property Law Association. Mr. Kirk served as the Deputy Assistant Secretary of Commerce and Deputy Commissioner of Patents and Trademarks from May, 1994, through March, 1995. In 1993, Mr. Kirk also served as the Acting Assistant Secretary of Commerce and Acting Commissioner of Patents and Trademarks.
Our final witness today is Ms. Anne Chasser, who is the Director of the Office of Trademark and Licensing services at the Ohio State University. She is testifying on behalf of the International Trademark Association as its President. She is a recognized expert in trademarks